Paul O’Connell and Nimer Sultany: Miller and the Politics of the Judiciary

One of the most striking things in immediate reactions to the High Court judgment in Miller is that so many commentators are willing to acquiesce in the crucially important assertion made in the judgment that the case was simply concerned with ‘a purely legal matter’. In their recent intervention, Mark Elliott and Hayley Hooper, while disagreeing with and critiquing aspects of the judgment, accept unwaveringly that the ‘question for the court was solely a legal question about the extent of executive authority’. They further argue that to criticise the decision in Miller as undemocratic ‘is not only wrong, it is dangerous’.

In a similar vein, Nick Barber and Jeff King argue that the judgment in Miller was entirely agnostic regarding the greater political issues at play and was simply concerned with ‘which institution possessed the power’ to trigger the Brexit process. In light of the scandalous response to the judgment from certain media outlets (those with a long track record of vilifying migrants, welfare claimants and trade unionists) Barber and King argue that ‘the reaction to Miller presents a grave threat to our constitutional order, a threat both to the rule of law and to the very structure of democracy in the United Kingdom’.

What is noteworthy about this line of response is that legal scholars have responded to one of the most significant constitutional judgments of the last thirty years, by arguing that the judgment is entirely legal, divorced from the surrounding political context and immune from criticisms that question the democratic propriety of judges deciding on such matters.

In this brief intervention we aim to make two points: (i) the first is a reflection on what it means to adopt a critical stance vis-à-vis constitutional developments and judgments; and (ii) the second, building on the first point, is to demonstrate that there are valid, and longstanding, critiques of the sort of judicial decision making in the Miller case, and that we should not foreclose such avenues of critique.

The Pitfalls of Legalism

With respect to the first point, one need not stray into the arcane arts of continental deconstruction to find a basis for contesting the idea that the Miller judgment concerned ‘a pure legal matter’. There is a venerable tradition in UK public law scholarship—from Harold Laski to John Griffith—of seeking ‘a conscious and realistic jurisprudence’ which recognises the agency of judges, and the necessarily political nature of judicial decision making. As Laski argued, the vagueness in core legal doctrines often ‘tempts the judge to believe that he is simply finding the law when in fact he is really testing and rejecting other men’s views by the light of his own’.

Evidence of this temptation is seen in the assertion by both the court in Miller and numerous commentators that the case was a purely legal matter. That, to borrow Griffith’s phrase, portrays the judges as devoid of ‘political, economic and social’ concerns with ‘no interest in the world outside the court’ when it comes to making a decision. This stance, as Griffith long ago demonstrated, is unsustainable: given the very nature of their role judges ‘cannot avoid the making of political decisions’ when confronted with controversial cases’.

It may be unsurprising that given the massive backlash against the High Court’s Miller judgment, legal scholars would echo the judges in their insistence on the separation between law and politics. In the popular discourse — the judgment has nothing to do with law. In the legalist discourse — the ruling is merely a question of legal technicality and as such is not political. It is a simple operation of applying legal materials, via legal reasoning, on a legal question to determine ‘what the law says’. Thus, the legalist approach views disagreements with the court’s reasoning as ones of doctrine and hence as internal to law.

In our view, both the popular and legalist positions are untenable given the intertwinement of law and politics. The popular response denies the relevance of law and rights discourse to political struggles and to shaping people’s consciousness. In particular, the focus on constitutional questions and landmark cases leaves out the myriad ways in which the background legal conditions shape people’s choices, determines their life conditions, and sanction unjust distributive outcomes.

The legalist discourse merely obfuscates the essentially normative and political questions at the basis of the legal debate. While it may be understandable that the judges seek to deny their agency by claiming that “the law” dictates their position, there is no reason for critical scholars to accept this denial of agency. As one of us has written, the availability of competing and reasonable legal answers to the question before the Court showcases that it is far from being a ‘pure question of law’, as the Court asserted. Therefore, legal scholars should be more forthcoming about the normative and political commitments that shape how one view such cases and thinks such controversies should be resolved.

Democracy and the Courts

Clearly much of the popular discourse responding to the High Court judgment contained outrageous personal attacks on the judges, which we should all condemn. We find it, however, bewildering that legal scholars would deny the reasonableness of the anti-democratic charge against the judicial intervention. Elliot and Hooper, for instance, assert that this charge is both ‘wrong’ and ‘dangerous’. This assertion stands in the face of decades of elaborate discussions about the ‘counter-majoritarian difficulty’ and between political and legal constitutionalists. As has been argued elsewhere, the persistence and irresolvability of these debates illustrates that institutional debates about who gets the final decision-making power when people disagree (judges or majorities) are inseparable from political and normative commitments. They certainly cannot be resolved by the mere assertion that one conception of democracy is correct and the other is wrong. Scholars are free to agree with the conclusion or the effect of the ruling, but they should not cloak this normative endorsement with contestable conceptual definitions. By doing so, they simply reproduce the same questions but at a higher level of generality and abstraction.

Debates about prerogative, parliamentary sovereignty and justiciability are difficult questions precisely because they are not purely legal. Essentially, these are questions about delineating the boundary between law and politics. There is no objective and consensual criterion to delineate this boundary and police it that is external to politics. To assert, as Barber and King do, that the justiciability question is clear given the ‘legal character’ of the question is to engage in a circular reasoning in which the conclusion is already presupposed. The distinction between law and politics in which politics is a space for private interests and arbitrary will, whereas law is a space for rights that are devoid of politics does not withstand critical scrutiny. This specific question is motivated by a political disagreement and has political consequences of which the judges are well aware. The litigation is motivated by the disagreement of opponents of Brexit with the majoritarian choice and seeks to overturn it, or at least to hinder its implementation. This context cannot be dismissed, as Barber and King do, as simply an institutional question about who is empowered to trigger Article 50, rather than the ‘desirability’ of triggering it. To make this assertion is to seek to separate the political question from the institutional arrangements to resolve it.

Thus, we maintain that even supporters of the ruling (and opponents of Brexit) have to admit that the resolution of this political debate at the hands of few judges indeed raises democratic concerns about the exclusion of majorities. They are free to proceed to prefer judges over majorities but it is futile to conceal this choice by claiming that their conception of democracy is superior on compelling rational grounds. They need to make a choice and acknowledge the choice as such.

Beyond Legalism

The legalist posture misses the popular grievances at the base of Brexit. Regardless of its merits, the Brexit referendum expressed a disenchantment with the political establishment and a growing alienation from processes of representation. Surely, this is understandable in an electoral system of first-past-the-post system that eschews proportional representation. Surely, this is understandable, when scholars have demonstrated that western constitutional democracies are not really an indirect form of government by the people, but rather a detailed system of governance that avoids government by the people (see Bernard Manin’s The Principles of Representative Government). Surely, this is understandable when scholars have repeatedly shown that the political system in western democracies is gravely unjust because it privileges the wealthy few over the many and sanctions obscene levels of inequality. Surely, this is understandable when 72 per cent of the voters who voted in a referendum are told that it was merely “consultative” and has no binding ramifications.

The forgoing does not suggest that majoritarian decision-making is inherently substantively correct. But the same can be said about judicial decision-making. Thus, the point is to acknowledge that these are two different processes of arriving at decision-making and only one is participatory. Admittedly, referenda are a limited participatory instrument but it is more representative than the current electoral system and more representative than the judiciary. The referenda’s shortcomings should lead to thinking of ways how to increase participatory forms and make them more sustainable, rather than to abandon them.

Therefore, those who agree with the current ruling’s conclusion should simply argue that they subscribe to it on substantive grounds, rather than deny the non-participatory nature of the judiciary and the ruling. To claim that those who privilege the judicial perspective are also democrats, based on a definitional fiat, is to obscure the consequences of this choice. It seems legal scholars are seeking to have it both: to overturn majoritarian decisions-making and to claim that they are the true democrats.

I followed and agreed up until the last paragraph. Why is the judicial perspective at odds with democracy; in what way are these alternative perspectives? So far as I am aware no-one has sought to deny the will as expressed in the referendum. In what way is majoritarian decision making being over-turned?
Had the referendum put some specific detailed issue, such as AV voting, to the vote, the status of the decision and it’s meaning would be clear. But that is not the case.
So far as I can see what is being privileged is Parliament over the executive on a matter where how to implement a broad decision is not at all clear.

It is neither outrageous nor an attack upon the judiciary to recognise that at least one member of the High Court had an interest which he failed to declare which should have led him to recuse himself.

The primary reason to criticise the Lord Chief Justice, the Master of the Rolls, Lord Justice Sales, Her Majesty’s Attorney General, and leading and junior Counsel in the case is their egregious failure to address in the judgment and oral argument the clearly relevant and highly material authority of Pepper v Hart [1993] AC 593:

The ratio of Miller squarely rests on the statutory construction that the 2015 Act was “advisory” [sic].

Government proposers of the 2015 Bill that provided for the referendum made clear and uncorrected statements that the Bill (the legal test for evidence that should be given weight in Pepper) was intended to provide for a “decision”.

On this authority, and this evidence, Miller was wrongly decided.

In addition, on the statutory construction that the 2015 Act provided for the UK’s statutory decision to leave the EU, Parliamentary sovereignty and popular sovereignty coincide. Making a statutory decision by popular sovereignty was an exercise of Parliamentary sovereignty and in no way incompatible with it.

Shindler & Anor v Chancellor of the Duchy of Lancaster & Anor [2016] EWCA Civ 469 was cited before the Divisional Court but the ratio of Shindler which was binding on the Divisional Court, is nowhere cited in the Miller judgment.

The Court of Appeal held in Shindler at [19] that the referendum would be part of Parliament’s decision-making process for the UK to withdraw from the EU:

“19.I accept that Parliament is sovereign and that it does not need the mandate of a referendum to give it the power to withdraw from the EU. But by passing the 2015 Act, Parliament has decided that it will not withdraw from the EU unless a withdrawal is supported by referendum. In theory, Parliament could decide to withdraw without waiting for the result of the referendum despite the passing of the 2015 Act. But this is no more than a theoretical possibility. The reality is that it has decided that it will withdraw only if that course is sanctioned by the referendum that it has set in train. In other words, the referendum (if it supports a withdrawal) is an integral part of the process of deciding to withdraw from the EU. In short, by passing the 2015 Act, Parliament decided that one of the constitutional requirements that had to be satisfied as a condition of a withdrawal from the EU was a referendum.”http://www.bailii.org/ew/cases/EWCA/Civ/2016/469.html

The failure of the Lord Chief Justice, the Master of the Rolls, Lord Justice Sales, Her Majesty’s Attorney General, and leading and junior Counsel in the case to grapple with the questions raised in Shindler is validly the subject of public criticism.

In a ground-breaking decision, the High Court in Miller issued a declaratory order that ‘the Secretary of State does not have power under the Crown’s prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union.’ [paragraph 111]. In earlier posts, I explained how the […]

The Minister for Europe (Mr David Lidington) in the debate on the Referendum Bill expressly stated the Government’s view that the referendum was advisory and he used that position to describe as nonsense an amendment to impose a threshold on a vote to Leave:

“Amendment 16 does not make sense in the context of the Bill. The legislation is about holding a vote; it makes no provision for what follows. The referendum is advisory, as was the case for both the 1975 referendum on Europe and the Scottish independence vote last year. In neither of those cases was there a threshold for the interpretation of the result.”

Thus the Government was indeed saying that it would not be bound by the referendum vote, envisaging no doubt that, were there to be a vote to Leave by an even smaller margin that it turned out, it would want wiggle room to ignore the vote.

Thanks Richard Burnett-Hall that is very important evidence, on which the respondents to the appeal can certainly rely if a Pepper V Hart argument is advanced .

The problem is it’s not precisely the definitive rebuttal evidence I tried to foresee – which would be defeat of an amendment to amend the bill to clarify it was a decision. I’ll have a think.

If you are correct that “the Government was indeed saying that it would not be bound by the referendum vote” that should be argued very indeed strongly in the appeal. and publicised very widely.

Scott Newton

November 10, 2016

Why should the analysis of constitutional decision-making be restricted to the dimension of judicial as against participatory, or counter-majoritarian as against majoritarian? The term ‘decision-making’ itself is problematic and reductive, when what is in view is really the exercise of public reason, whether in a political or legal idiom. The referendum was defective precisely as a matter of public reasoning, since it was non-deliberative (as opposed to either a parliamentary act or a judicial decision), was severely constrained by its binary and rigid terms, and was subject to elite manipulation in its initial formulation and presentation (why this referendum at this juncture?) and then to all manner of factual misrepresentation and distortion in the campaign. The attribution of the Leave vote to “alienation from the processes of representation” and thus to an expression of majority preferences otherwise frustrated might be plausible. But why view the Miller ruling as either purely technical and therefore of no bearing on the expression of such majority preferences (the legalist denial of judicial agency position) or as disguised politics and therefore an unwarranted interference with that expression (the populist position)? To pose the issue in those terms is as reductive an exercise as the referendum. Why not see the Miller ruling as an (admittedly ‘meta-deliberative’) defence of participatory, deliberative public reason itself? Why fetishise the form of the ruling as an instance of non-participatory, counter-majoritarian decision-making, when its substance was an affirmation of majoritarian, deliberative reason (not just decision-making)? The argument above seems to confuse or speciously align a number of separate distinctions: majoritarian/counter-majoritarian, participatory-non-participatory, legal/political, judicial/parliamentary, representative/plebiscitary, procedural/substantive. In Miller the High Court was acting in its uniquely judicial constitutional capacity of safeguarding “representational processes” themselves. Whether that capacity is characterised as legal or political or necessarily both, it is a distinct capacity. The High Court was exercising a special form of public reason (judicial deliberation) to protect the general form of public reason (parliamentary deliberation) from circumvention either by an over-reaching executive or a constitutionally (and democratically!) dubious plebiscite.

An application will be made to join the Supreme Court appeal by third-party interveners Lawyers for Britain (with whom I am entirely unconnected).

They appear to advance arguments similar to that I put above:

‘…We consider that there are arguments which are additional to or different from the arguments put forward by the government which support the conclusion that the appeal should be allowed. We think that it is important in the public and national interest that the Supreme Court should be in a position properly to receive and consider those arguments.

In taking this step, we believe that we are seeking to represent the wider interests of all who participated in the Leave campaign and of the 17.4 million people of this country who voted to leave the European Union. The referendum was authorised by Parliament to give effect to a clear and unequivocal pledge in the General Election manifesto of the winning party that the people would decide (not merely advise on) the question of our membership of the EU. We believe that the outcome gives rise to a clear and unambiguous constitutional mandate to implement the people’s decision to leave which must be respected by government and Parliament, and reject the suggestion that the referendum was merely “advisory”….’

The authors say: “The litigation is motivated by the disagreement of opponents of Brexit with the majoritarian choice and seeks to overturn it, or at least to hinder its implementation.”

Not so, or at least there is no basis for saying so. The “majoritarian choice” was simply for leaving the EU, and whether or not the claimants in the litigation may have preferred a different result is not in point: they have stated explicitly that they do not seek to overturn it. What does motivate them is the substantial risk that triggering Article 50 would lead to a “hard”, as opposed to “soft”, Brexit after just 2 years if no agreement is reached with the EU before then. These different options would be likely to lead to profoundly different, and potentially adverse to some at least, consequences for the UK. The referendum result sheds no light at all on which outcome the majority of the electorate would prefer, as that aspect was never seriously addressed by the campaigners. Indeed, all suggestions that leaving the EU might entail any costs at all was rubbished as “Project Fear”.

What the claimants say they want to establish by the litigation is that Parliament as a whole, and not the government acting on its own, is entitled to and should have control over the consequences of pulling the Article 50 trigger, and that nothing irrevocable should be is done until that issue is settled. They are certainly not alone. And if they are right in their claim, then the fact that an Article 50 notice may possibly be withdrawn, as some (though not the government itself) have contested, is irrelevant: even if there is no more than a risk that it may be irrevocable, then it cannot be open to the government, acting unilaterally, to expose the country to that risk.